Linah Chipitiri v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/514/2014
HARARE, 2 JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/514/2014

HARARE, 2 JULY 2014 &				  CASE NO LC/H/235/2014

15 AUGUST 2014

In the matter between

LINAH CHIPITIRI							      APPELLANT

Versus

ZIMBABWE REVENUE AUTHORITY				     RESPONDENT

Before The Honourable P Muzofa   :   Judge

For the Appellant		R T Maganga    (Legal Practitioner)

For the Respondent        K Renzva   (Legal Officer)

MUZOFA J:

The appellant raised two preliminary issues before the matter proceeded into the merits. Firstly that the respondent filed its notice of response out of time and therefore was barred in terms of Rule 19 3(b) of the Labour Court Rules (“the rules”). Secondly that the said notice of response was not properly before the court as it was not made on the proper form LC2 prescribed by the rules. The appellant relied on Rule 19 which deals with failure to file heads of argument instead of Rule 22 that deals with failure to file a notice of response within the prescribed time limits. That as it maybe the court will address the issues raised since substantively the points relate to the notice of response.

The appellant argued that the respondent was barred and cannot be heard. The respondent opposed the application. The respondent referred the court to Rule 15 (d) of the Rules. In terms of that rule the Registrar is required to give notice to the respondent to file a notice of response after receiving a notice of appeal.

It was argued by the respondent that in terms of the rules the appellant has to file an appeal, serve a copy of the notice on the respondent, a copy thereof is filed with the Registrar. It is only then that the Registrar is required to issue a notice inviting the respondent to file a notice of response. In casu the notice of appeal was served on the respondent together with the notice to respond. The respondent argued that this was irregular and the appellant cannot rely on an irregularity. In short the respondent’s case was that it was properly before the court. On the second issue the respondent submitted that the notice to respond was not on the LC2 form to that extent the respondent could not respond on the said form.

Rule 22 of the rules provides as follows:

“Where a notice has been given to a party to file a notice of response within the period specified in Rule 14, 15 or 16 and that party fails to comply the matter shall nevertheless be set down … on the day of hearing the defaulting party-

Appears and shows good cause why he or she did not file a notice of response …

Does not appear or show good cause why he or she did not file a response …”

The respondent filed its notice of response despite the challenge that it was not properly served with process albeit on the 15th day instead of the 14 days required by the rules. The respondent appeared before the court to explain the delay. The court has to determine whether the respondent has shown good cause for the delay. The respondent relied on the failure by the Registrar to serve process in terms of the rules. Particularly that the Registrar sent the notice to respond through the appellant. It was not in dispute that the appellant upon filing the notice to appeal, the Registrar upon receipt of the notice gave the notice to respond to the appellant. The appellant in turn served the notice of appeal together with the notice to respond to the respondent. Rule 15 (2) provides as follows:

“The Registrar shall, within thirty days of receiving a  notice of appeal in terms of subrule 1 (d), give notice in Part 1 of Form LC2 to the respondent …”

The rules do not specifically prescribe what medium should be used to give notice to the respondent. If there were terms like the “Registrar shall through …. give notice” the respondent’s argument would be valid. The Registrar therefore can choose which medium to use to send the notice to respond. I believe sending the notice through the appellant is for expediency. The only issue is whether the Registrar’s conduct was in compliance with Rule 15 (1)(d)(ii). It was not disputed that the notice to respond was issued before the Registrar was in receipt of proof that the notice of appeal had been served on the respondent. That on its own cannot be allowed to vitiate proceedings. The bottom line being that there was no prejudice suffered by the respondent as a result of that irregularity. The respondent did not argue that it was prejudiced by the Registrar’s conduct. The rules of the court are not an end in themselves, they are meant to ensure practical and smooth process to achieve the goals of the enabling Acts of Parliament. In my view            nit-picking would actually defeat the very purpose of the rules particularly where no prejudice befalls the aggrieved party. It is the court’s finding that the respondent was properly served with a notice to respond.

The respondent being fully convinced that it has shown good cause for the delay did not seek the indulgence of this court to condone its conduct. The court is alive to the established precedent that a court cannot extend its indulgence and condone conduct where no application has been made, see generally Moyo v Forestry Commission 1997 (1) ZLR 254 (S). However this court is empowered in terms of Rule 26 to direct or authorise a departure from the rules in the interests of justice, fairness and equity. The circumstances of this case being that the respondent filed its notice of response just one day after the dies inducie, the matter is ready to proceed on the merits and no prejudice has been suffered by either party. The court will allow the notice of response as properly filed. Nothing turns on the second preliminary point. I say so because it was undisputed that the respondent was not served with the notice to respond on the prescribed form LC2. The respondent can therefore not be held accountable for failing to use the Form LC2 in its notice to respond. Accordingly both points in limine should be dismissed and the following order is made:

The points in limine be and are hereby dismissed.

The Registrar is directed to set down the matter to be heard on the merits.

No order as to costs

Maganga & Company, appellant’s legal practitioners